Adverse possession and public parks: Ontario’s top court splits on the “public benefit” test
Can a private homeowner adversely possess municipal parkland in Ontario? According to the Court of Appeal’s decision in Kosicki v. Toronto (City), 2023 ONCA 450, the answer is “no”, unless the municipality has acquiesced or waived its ownership. Kosicki also addresses the role of the common law in adjudicating real property claims despite the enactment of the Real Property Limitations Act (the “Act”), which codifies some, but — according to the Court of Appeal majority — not all of the law of adverse possession in Ontario.
A majority of the Court of Appeal held that private landowners could not adversely possess the municipal parkland at issue in this case. The majority reached this conclusion because the Act does not make specific reference to municipal lands; according to the majority, this legislative silence means that the Act does not apply to claims of adverse possession of municipal lands, such that the court should have recourse to the common law “public benefit” test for determining whether municipal lands can be adversely possessed. In this case, the majority held, the municipal lands in question could not be.
The dissenting judge disagreed; he would have held the statutory regime to be exhaustive and concluded that its silence with respect to municipal lands means there is no bar to adversely possessing them. He forcefully criticized the assertion of a residual aspect of the law of adverse possession as a “naked assertion of judicial power” in an area controlled by statute, rejecting the majority’s use of the “public benefit” test as a statement “of what some judges might wish the law to be” not “what the law is.”
The facts and decision of the application judge
The appellant landowners own a corner residential property near the Humber River. There are 26 other residential properties to the east. The respondent City of Toronto (the "City”) owns a strip of land to the south of these residential properties adjacent to a municipal park. The parcel at issue was a trapezoid-like piece of land behind the appellants’ home (“Disputed Land”) that had originally been expropriated in 1958. The Disputed Land had been fenced off and used by the owners of the appellants’ property since at least 1971, even though the City was the registered owner. The appellants maintained the Disputed Land as a backyard and paid property taxes on it, which the City accepted until 2020.
In 2021, the appellants approached the City to purchase the land. Based on its policy discouraging the sale of green space, the City refused to sell. The appellants then brought a claim for adverse possession, i.e., a judicial declaration that the Disputed Land had become their property.
The application judge found that the Disputed Land would have met the test for an adverse possession claim but that publicly owned lands were immune to adverse possession. The application judge applied the common law “public benefit" test that the Supreme Court of Canada developed in Hackett v. Colchester South: in that case, the Supreme Court held that land dedicated to the “enjoyment of the public” was not subject to claims of adverse possession. The “public benefit” test (often couched in the language of whether a “high public interest purpose” in maintaining the public lands has been made out) has been further refined by courts over the years. Following this line of jurisprudence, the application judge held that the Disputed Land, as public land originally required for “a very high public interest,” having been expropriated for a public purpose and conveyed to the City as parkland, warranted immunity from private individuals’ adverse possession claims. Allowing private persons to arrogate public lands to themselves by fencing them off for their personal use would set a “dangerous precedent.”
The majority opinion of the Court of Appeal for Ontario
Sossin J.A., writing for himself and MacPherson J.A., dismissed the appeal. The majority held that adverse possession claims against municipal lands — other than those specifically protected from such claims in the legislation — should be resolved by recourse to the “public benefit” test at common law. Where the land was purchased by, or dedicated to, a municipality (here, the City) to pursue a high public interest, as in the case of parkland or other land dedicated to the use or benefit of the public, adverse possession is available only in cases where the municipality has waived its rights or acknowledged or acquiesced in the possession, neither of which had occurred in this case.
Specifically, the majority held that the Act was not a complete code and that nothing in the Act suggested that it was intended to preclude the continued development of the common law in relation to public lands. In other words, that a section of the Act (section 16) immunizes certain categories of public lands from claims of adverse possession does not mean that it ousted the common law with respect to adverse possession in the context of other categories of public lands with respect to which the statute is silent. While those categories not mentioned in section 16 would not benefit from the statutory immunity to claims of adverse possession, they could still be subject to immunity at common law, under the “public benefit” test.
Dissenting opinion of Brown J.A.
Brown J.A., in dissent, would have allowed the appeal on the basis that that the Act ousts the common law through complete codification of the law of adverse possession. Complete codification, according to Canadian courts, precludes the common law where a statute provides an exhaustive set of remedies. However, unless the legislation clearly displaces common law principles, it should not be assumed to do so.
In Kosicki, Brown J.A. emphasized that the appellants had satisfied the statutory requirements to extinguish the City's title to the Disputed Land. He characterized the majority’s opinion as amending, rather than interpreting, the provisions of the Act, writing that it had “denied the appellants’ claim on the basis that courts are entitled to look beyond the law as it is and, instead, determine the claim based on the law as the courts think it ought to be.”
This decision highlights a tension in approaches to the intersection between common law and statute law that runs through Canadian jurisprudence. The majority’s approach was to view the silence of the Act as a gap to be filled by the development of the common law through refinement of the “public benefit” test. Brown J.A., on the other hand, spoke out strongly against the courts’ use of the common law effectively to amend a statutory scheme on the basis of an asserted public benefit, depriving litigants of certainty and their “legal due” in a manner for which the courts are not directly accountable.
  S.C.R. 255
 See, e.g.: Woychyshyn v. Ottawa (City) (2009), 88 R.P.R. (4th) 155 (Ont. S.C.), at para. 13; Prescott & Russell (United Counties) v. Waugh (2004), 15 M.P.L.R. (4th) 314 (Ont. S.C.), at para. 21; Oro-Medonte (Township) v. Warkentin, 2013 ONSC 1416, at para. 119